Vermont judge’s ruling: Some evidence, not all, allowed at new murder trial

A Windsor Superior Court judge has ruled that a Springfield man accused of second-degree murder in a 2008 shooting on a Chester, Vt., softball field can introduce some evidence about the victim’s mental health.

www.vnews.com    

Vermont Judge’s Ruling: Some Evidence, Not All, Allowed at New Murder Trial Kyle Bolaski listens to testimony from a toxicologist on the second day of a motion hearing to admit evidence at his new trial about the shooting victim's mental health on Wednesday, June 28, 2017, in White River Junction, Vt. (Valley News - Jovelle Tamayo) Copyright By Jordan Cuddemi Valley News Staff Writer Wednesday, August 30, 2017 Print HARTFORD VT White River Junction — A Windsor Superior Court judge has ruled that a Windsor County man accused of second-degree murder in a 2008 shooting on a Chester, Vt., softball field can introduce some evidence about the victim’s mental health. But Judge Theresa DiMauro ruled other evidence inadmissible, including some information about Vincent Tamburello Jr.’s behavior in the months before Kyle Bolaski shot and killed him after Tamburello allegedly pursued him with a splitting maul on Aug. 17, 2008. She also ruled out testimony from a defense-hired expert who opined that Tamburello was suffering from a “paradoxical,” or opposite, reaction to the anxiety medication alprazolam, saying in part that he lacked the qualifications to make such a determination using post-mortem evidence. That struck a nerve with Bolaski’s defense team, which appealed DiMauro’s ruling shortly after she issued it earlier this month. Defense attorney Brian Marsicovetere argues that the ruling — if it stands — would violate Bolaski’s due process rights because DiMauro “weighed the ultimate conclusions of the (defense and state-hired) experts and decided their merits versus determining the reliability of the scientific principals they applied.” The prosecution on Monday filed a motion opposing the appeal, saying it doesn’t meet the proper legal grounds because the defense’s “argument is a factual one, not a legal one.” “(The defense) argues that the trial court erred in its determination of factual issues — was (the defense’s expert witness) qualified to give the opinion that he did? ... A question of law is one capable of accurate resolution by an appellate court without the benefit of a factual record,” wrote Franklin County Deputy State’s Attorney John Lavoie, who is prosecuting the case. Evidence about Tamburello’s mental health and behavior in the months prior to the incident has been at the center of the long-running case, not only because Bolaski claims he was acting in self-defense when he fired two shots that day, but because the Vermont Supreme Court threw out Bolaski’s prior conviction, in part because the trial judge prematurely excluded evidence about Tamburello’s mental health. “The Vermont Supreme Court explained that ‘if the excluded evidence would make it more probable to the jury that the victim was the aggressor when he was shot, it is relevant,’ ” DiMauro wrote in her opinion and order dated Aug. 8. She examined each piece of evidence the defense felt should be included at Bolaski’s new trial, which was the subject of a state-filed motion to limit such evidence and a two-day hearing that wrapped up in June. DiMauro ruled that two distinct categories of medical records can be admitted. The first relates to a Massachusetts General Hospital stay where Tamburello was diagnosed with a mood disorder, which was just one of several times that Tamburello sought medical care prior to the incident. “This evidence ... potentially provides a(n) ... explanation for Mr. Tamburello’s mental state and behavior at the time of the underlying incident giving rise to these proceedings,” DiMauro wrote. The second stems from a visit to a mental health treatment facility in Bellows Falls, Vt., where Tamburello told a social worker that he was a “monster if not on (his) medications,” and includes other health care-related visits that summer when he expressed having suicidal thoughts as well as anxiety and a panic disorder that could sometimes make him act “crazy” and “ballistic.” “The court finds these statements to be relevant to whether Mr. Tamburello may have been experiencing agitation and suicidal ideation at the ball field, so as to make it more probable to a juror that he was the aggressor during the events leading to his death,” she wrote. Some of the evidence that DiMauro ruled would not be allowed at Bolaski’s new trial includes information about prior altercations Tamburello allegedly engaged in at an urgent care facility and an incident where he allegedly removed labels from pill bottles at a drug store in Springfield, Vt. In addition, she ruled out other information about Tamburello’s alleged abuse of prescribed medications and drug-seeking behavior. According to the state Supreme Court ruling, a toxicology report revealed that at the time of the incident, Tamburello had a variety of drugs in his system: alprazolam, or Xanax; methadone; THC and cannabinoids were among them. The defense-hired expert, psychopharmacologist Scott Lukas, said Tamburello was well over the therapeutic dose of alprazolam, which could have impacted his decision-making and caused him to act aggressively. DiMauro gave more weight to the state-hired expert, toxicologist George Behonick, who cast doubt on Lukas’ opinion. In his appeal, Marsicovetere asserts Lukas’ testimony is “admissible evidence that the Vermont Supreme Court specifically contemplated when it reversed the trial court’s original decision to exclude the mental health evidence.” Lavoie called the defense’s assertion that the appeal will “advance the termination of the litigation ... just speculation.” On the contrary, he said, the appeal will “definitely” delay Bolaski’s new trail, which is scheduled to start on Dec. 7. Bolaski, a Springfield, Vt., resident who is now 33 years old, has a pretrial conference scheduled for Dec. 5. He continues to remain free on bail pending trial. Marsicovetere and Lavoie didn’t return requests for comment this week. Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.